MONTANA CON LAW WIKI

Montana’s (now defunct) Marriage Amendment

In 2004, Montana voters passed a constitutional amendment to ban same-sex marriage in the state. Montana’s so-called “marriage amendment” began as a voter initiative. Constitutional Initiative 96 received enough signatures to put CI-96 on the November 2004 ballot. The initiative passed with 67% of the popular vote.http://www.cnn.com/ELECTION/2004/pages/results/ballot.measures/ The amendment was added to Montana’s Constitution.Mont. Const. art. XIII § 7. The amendment declared “only a marriage between one man and one woman shall be valid or recognized as marriage in this state.” Id.

In 1997, the Montana legislature enacted a statute which specifically prohibited “a marriage between persons of the same sex.”Mont. Code Ann. § 40-1-401 (2015). The marriage amendment bolstered this statute, making challenges to the statute in state court potentially unwinnable.Lisa M. Polk, Student Author, Montana’s Marriage Amendment: Unconstitutionally Denying a Fundamental Right, 66 Mont. L. Rev., 405, (2005). In 2003, the Massachusetts Supreme Court struck down a Massachusetts statute which prohibited same-sex marriage; the Court determined the statute violated the Massachusetts state constitution.Goodridge v. Dept. of Public Health, 798 N.E. 941 (Mass. 2003). Montana’s CI-96 was used to preempt constitutional challenges to the Montana marriage statute in order to prevent a Montana ruling under the Montana constitution akin to the Goodridge ruling.Polk, 66 Mont. L. Rev. at 405. Montana was not alone in its reaction to the Goodridge ruling: 12 other states amended their constitutions in 2004 to define marriage as a union only between one man and one woman.Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, Oregon, and Utah., Id. at 408. Even before the Goodridge ruling, four states already had constitutional provisions defining marriage as being between one man and one woman.Alaska, Hawaii, Nebraska, and Nevada. Id.

Montana’s CI-96 was spearheaded by Montana state representative Jeff Laszloffy (R-Laurel) and the Montana Family Foundation.Id. at 409. Laszloffy asserted he began CI-96 because “he knew the issue would come before Montana courts and he ‘wanted to give judges a clear message on how the people of Montana want them to respond.’”Id. (quoting Julie Sparrow Carson, Conflicted Agendas, Missoula Independent, Oct. 14, 2004 This indicates Laszloffy wrote CI-96 to directly stem the tide of litigation against Montana’s statute banning same-sex marriage.

The 2004 Voter Information Pamphlet presented the following argument for CI-96:

The time-honored, vital institution of marriage is being threatened. Homosexual activists have pushed legislatures in Montana and across the U.S. to legalize same-sex marriage. Legislators have repeatedly said no because voters, by an overwhelming majority, reject same-sex marriage. Lack of legislative success has caused homosexual activists to change tactics. They now seek out activist judges who are willing to mandate same-sex marriage by judicial decree. Public policy should be decided by the people, either directly through ballot initiative, or indirectly through their elected representatives, not by activist judges. Voting yes on CI-96 places the definition of marriage in the hands of the people, rather than the courts. CI-96 will ensure that natural marriage is preserved by defining it constitutionally. Special interest groups are constantly seeking to gain special rights that infringe on the rights of the rest of society. Such special rights cost all Montanans both in dollars and in lost freedom. For instance, in this case, we could lose the freedom to teach our children as we wish. The issue of same-sex marriage will come before Montana's courts soon. Voting yes on CI-96 allows the people to give clear direction to judges on this important issue. Voters have never legalized same-sex marriage in any state. In every instance where same-sex marriage was mandated by a court decision, the voters immediately overturned the court through ballot initiative, and then amended their state constitutions to define marriage as a union between a man and a woman. If CI-96 fails, how will homosexual marriage one day affect your family? - Every public school in Montana would be required to teach your children that same-sex marriage and homosexuality are perfectly normal. Pictures in textbooks will also be changed to show same-sex marriage as normal. - Small business employers in Montana may someday be required to provide expanded health coverage, retirement and fringe benefits to same-sex "spouses" of employees. The broad subjectivity of such un-funded mandates could hurt Montana's economy and jobs. -Your church will be legally pressured to perform same-sex weddings. When courts - as happened in Massachusetts - find same-sex marriage to be a "constitutional and fundamental human right," homosexual activists will successfully argue that government is underwriting discrimination by offering tax exemptions to churches and synagogues that only honor natural marriage. Natural marriage is extremely important for future generations. Men and women are distinctly different. Each gender brings vitally important, and unique, elements to a child's development. Saying that children don't necessarily need fathers or mothers is saying that one gender or the other is unnecessary. A loving and compassionate society always aids motherless and fatherless families. Compassionate societies never intentionally create families without mothers or fathers, which is exactly what same-sex homes do. Of 193 countries, only Scandinavia and two other countries have legalized same-sex marriage. This radical departure from thousands of years of time tested natural marriage has only occurred within the last 10 years. Let's protect our families and children from this vast, untested, social experiment. Please vote FOR CI-96!Montana Secretary of State, Voter Information Pamphlet (2004) http://sos.mt.gov/elections/Archives/2000s/2004/VIP2004.pdf (emphasis original)

The same 2004 Voter Information Pamphlet offered the following argument against CI-96: Josef Kijewski volunteers in his community, contributes to the tax base, and participates in civic life. He is a “native” Montanan, as comfortable discussing politics with the governor as he is “kicking back” at a family reunion in a remote corner of Big Sky country. Josef’s ancestors moved to Montana in the 1870s and homesteaded at Brown’s Gulch, near Butte, in 1890. As for many Montana families who struggle to eke out a living and attain a first-class education, life hasn’t always been Easy Street. But when times are rough, Josef’s family is the first line of defense. Nevertheless, when it comes to civil marriage, a convict on death row has more rights than Josef. Because Josef is gay, he cannot barter all the good will in the world for a $35 marriage license – that simple document granting couples the responsibility to care for each other and the right to protect their legacies. Josef and his future partner could spend thousands of dollars on attorney fees to patch together a handful of safeguards for their home and family. But if CI-96 were to pass, the State could nullify the contractual agreements made between same-gender partners. CI-96 would limit innovative and robust companies from treating their employees equitably. And CI-96 would ban churches and their clergy from legally solemnizing these partnerships – infringing on the diverse religious beliefs of our neighbors. Montanans have designed the most remarkable Constitution in America. Our Constitution limits the State’s interference in our homes and families, and assures us that all Montanans are treated decently and fairly. The US Census counted 1,200 households headed by same-gender couples in Montana in 2000; these workers and families are an integral part of Montana’s social and economic fabric. While some constituents may feel heterosexual relations are in need of validation by a constitutional amendment, CI-96 does nothing to strengthen marriages in Montana. CI-96 will not put food on a family’s table, a health insurance card in the wallet, gas in the car, or scholarships in the mailbox. CI-96 does nothing to help military families navigate wartime pressures. CI-96 does not address the cultural trends of divorce, teen parenting, premarital cohabitation, serial marriages, overworked parents, and the encroachment of commercialization on home life. What CI-96 does do is diminish the freedom to be “let alone” that Montanans have historically treasured. CI-96 would alter the Constitution to set up one vulnerable minority group for alienation, discrimination and harassment. CI-96 directly contradicts the very intent of the Constitution, the civic spirit of our communities, and our independent heritage. For this reason, we urge our neighbors to vote No on CI-96. (Portions of this argument are adapted from an essay by Josef Kijewski’s father, Kenneth Kijewski, of St Mary’s, Montana.)Id.

Proponents’ of CI-96 offered the following rebuttal of the argument against CI-96: Contrary to the opponent’s argument, CI-96 doesn’t limit the ability of homosexuals to enter into contractual agreements to protect their assets. It doesn’t stop employers from giving same-sex couples the same benefits as their married employees (if they so choose), and it doesn’t stop churches from recognizing same-sex partnerships. In short, CI-96 changes nothing, and that’s the point. It simply stops the legalization of homosexual marriage by placing the historical definition of marriage into our constitution, as other states have done. This is the only tool that has proven successful in stopping courts from mandating same-sex marriage. Same-sex proponents say CI-96 limits the rights of homosexuals. That argument makes no sense because there is not, and never has been, a “right” to same-sex marriage, just as there is no “right” to polygamy. Those in favor of same-sex marriage say that Montanans just want to be “let alone.” We couldn’t agree more! That is exactly why we need to pass CI-96. This amendment insures that parents will be “let alone” to raise their children as they deem best. It insures churches will be “let alone” to practice their faith as they feel led, and it insures employers will be “let alone” to run their businesses in a manner they feel best serves their employees and customers. Let’s stop homosexual activists and activist judges from forcing Montanans, and Montana’s children, to become part of a vast, untested social experiment. Help protect marriage. Vote yes on CI-96! For more information go to www.montanafamily.org.Id. (emphasis original)

Opponents of CI-96 offered the following rebuttal of the argument in favor of CI-96: In their argument, CI-96 proponents deceive Montanans about the nature of civic life in our great state. Today, schoolchildren in Montana are already taught to respect the rights of those who are different from them: parents reserve the right to instill religious values in their children. Businesses in Montana are already required to operate under civil rights laws, and innovative employers large and small recognize that discrimination is bad for business. Churches retain the special right to refuse to solemnize the marriage of any couple for any reason. This will never change. We find it chilling that the architects of CI-96 would resort to fear mongering to cut minority families out of the Constitution. Montana’s Constitution states: “The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws.” This should not be altered. Based on our Constitution, the Montana Supreme Court has ruled: “[T]here are certain rights so fundamental that they will not be denied to a minority no matter how despised by society.” This should not be brushed aside. Our Founders created a system of checks and balances that places a premium on individual liberty. Even when we as citizens have failed to recognize the humanity of our neighbors, America has always offered the promise of fairness. We are especially blessed with a secular form of government that allows each citizen to choose a unique religious path. Preserve the promise of personal freedom in Montana. Vote NO on CI-96.Id.

The voters of Montana overwhelmingly voted in favor of CI-96 and the marriage amendment was placed in the Montana Constitution.http://www.cnn.com/ELECTION/2004/pages/results/ballot.measures/; Mont. Const. art XIII Sec. 7.

On November 19, 2014, Montana’s marriage amendment was struck down by federal court judge Brian Morris.Billings Gazette, Federal judge overturns Montana’s gay marriage ban, http://billingsgazette.com/news/state-and-regional/montana/federal-judge-overturns-montana-s-gay-marriage-ban/article_585e4df1-6c99-57ee-a72b-1d975a245975.html (Nov. 19, 2014). Judge Morris determined the ban on same-sex marriage violated the Equal Protection Clause of Fourteenth Amendment of the U.S. Constitution.Id. Judge Morris wrote, “This court recognizes that not everyone will celebrate this outcome, yet the United States Constitution exists to protect disfavored minorities from the will of the majority.”Id. Only two months before Judge Morris’s ruling, the Ninth Circuit Court of Appeals ruled that both Idaho’s and Nevada’s similar bans on same-sex marriage were unconstitutional.Id.